United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LESLIE
A. BOWMAN UNITED STATES MAGISTRATE JUDGE
Pending
before the court is an amended petition for writ of habeas
corpus filed in this court on June 4, 2018, by Manuel Jose
Pelayo, an inmate currently held in the Arizona State Prison
Complex in Florence, Arizona. (Doc. 5)
Pursuant
to the Rules of Practice of this court, the matter was
referred to Magistrate Judge Bowman for report and
recommendation. LRCiv 72.2(a)(2).
The
Magistrate Judge recommends that the District Court, after
its independent review of the record, enter an order denying
the petition. All of Pelayo's claims are procedurally
defaulted.
Summary
of the Case
Pelayo
was convicted after a jury trial of two counts of Aggravated
Driving While Under the Influence of Intoxicating Liquor.
(Doc. 12-1, p. 15) The state presented evidence at trial that
Pelayo drove his friend's Dodge through a red light and
hit a white truck while under the influence of alcohol. (Doc.
12-2, pp. 92-93) Pelayo was arrested at the scene, despite
his statements that he did not know what happened and was not
driving. (Doc. 12-2, pp. 26-27)
After
he was found guilty on both counts, a second trial was held
to determine prior felony convictions. (Doc. 12-2, p. 93) At
that trial, it was established that Pelayo previously had
been convicted of DUI (driving while under the influence)
offenses in 1999, 2000, and 2002. (Doc. 12-2, p. 93) The
trial court sentenced Pelayo to two concurrent 10-year terms
of imprisonment. (Doc. 12-1, p. 20)
On
direct appeal, appellate counsel reported that he was unable
to find any colorable issues. (Doc. 12-1, p. 62) Pelayo was
permitted to file a pro se supplemental brief in which he
argued generally that trial counsel and appellate counsel
were ineffective and the court should review the record for
fundamental error. (Doc. 12-2, pp. 2-18) The Arizona Court of
Appeals refused to address the ineffective assistance claims
because the Arizona Rules of Criminal Procedure require that
they be brought in a post-conviction relief proceeding. (Doc.
12-2, p. 27) The court examined the record for reversible
error and found none. (Doc. 12-2, p. 28)
Pelayo
filed notice of post-conviction relief on June 8, 2015. (Doc.
12-2, p. 32) After the court granted Pelayo's motion that
appointed counsel be dismissed, he filed a petition pro se on
February 16, 2016. (Doc. 12-2, p. 42); (Doc. 12-2, p. 44) He
argued that (1) the trial court erred by not granting a
mistrial when Officer Powers gave testimony that was
subsequently stricken by the court as hearsay, which tended
to prove that Pelayo was the driver of the car that caused
the accident, (2) appellate counsel was ineffective in her
handling of the mistrial issue, (3) the state failed to prove
he was the driver of the car that caused the accident, and
(4) appellate counsel was ineffective for failing to raise
this issue too. (Doc. 12-2, pp. 44-55) The trial court denied
the petition explaining that a mistrial was unnecessary
because the testimony was stricken from the record and the
jury was given a curative instruction. (Doc. 12-2, p. 104) In
his petition for review, Pelayo claimed (1) the trial court
erred by not granting a mistrial, (2) the state did not prove
that Pelayo was the driver, and (3) appellate counsel failed
to raise these two issues. (Doc. 12-2, pp. 109-118) The
Arizona Court of Appeals granted review but denied relief on
October 10, 2017. (Doc. 12-2, pp. 158-159)
Pelayo
filed a petition for writ of habeas corpus in this court on
April 30, 2018. (Doc. 1) He filed an amended petition on June
4, 2018. (Doc. 5) In that petition, he claims that (1)
the
jury was improperly instructed, the trial court did not
correct errors, the trial court improperly allowed prior
convictions to affect the sentence, witnesses were not made
available, and evidence was suppressed; (2) the blood samples
were improperly tested, the arresting officer falsified
witness statements, and the state withheld and suppressed
evidence; (3) trial counsel was improperly prepared and the
court interfered with defense counsel's ability to
present a defense; and (4) the jury was prejudiced by the
Willits[1] instruction given after they were exposed
to hearsay testimony and the jury was denied the ability to
ask questions. (Doc. 5) He states in his amended petition
that all of his issues were raised on direct appeal.
Id.
The
respondents filed an answer on September 18, 2018 in which
they argue that all of Pelayo's claims are procedurally
defaulted. (Doc. 12)
This
court subsequently issued an order setting a deadline for
Pelayo to file a reply and further instructing him that
any assertions in the reply that Petitioner's claims were
fairly presented to the state appellate courts shall be
supported by specific references to the location of the
presentation of the claim, i.e. by document name,
date of filing with the state court, exhibit number/letter in
the record of this proceeding, page(s)/ line number(s)
...